Summary

Facts

Jemma Beale was the Defendant in proceedings for perjury and attempting to pervert the course of justice at Southwark Crown Court.

In 2011 she gave evidence in a trial at Isleworth of a man who was indicted with raping her. The jury failed to agree and she gave evidence again the next month in a retrial. The man was convicted and sentenced to seven years’ imprisonment. Subsequent enquiries were to reveal that Miss Beale had made other allegations which the prosecution in her trial said were untrue. The defence were informed and leave to appeal against conviction was granted to the imprisoned man, who successfully appealed: see R v C [2015] EWCA Crim 1335.

On the day the Crown opened their case against her at Southwark, the issue of Miss Beale’s anonymity was raised before the Judge. The issue was whether section 1 of the Sexual Offences Amendment Act 1992 (“the 1992 Act”) afforded her anonymity in reports of the trial. On 2nd June 2017, at a hearing also attended by counsel for News Group Newspapers, counsel for Miss Beale made an application for an order under section 4(2) of the 1981 Act. The judge reserved his decision and handed it down on 5th June 2017.

The Judge acknowledged that he had no power to make an order anonymising Miss Beale under section 1 of the 1992 Act, since that Act provides for automatic anonymity for victims of sexual offences, rather than conferring a power to make orders. However, he acceded to an application for an order under section 4(2) of the Contempt of Court Act 1981 (“the 1981 Act”), which he made in these terms:

“It appearing to the court to be necessary to do so for avoiding a substantial risk of prejudice to the administration of justice in other proceedings pending or imminent, it is hereby ordered that the publication of any report of the said proceedings should not, until further order, include any reference to the following matters: i. The identity of the defendant in these proceedings. ii. Any matter of fact or law that could lead to her being identified as the defendant in these proceedings.”

The judge’s decision was based on two points. First, he concluded that Miss Beale was entitled to anonymity under the provisions of section 1 of the 1992 Act. He said that he found section 1(4) of the 1992 Act difficult to construe, but he did not consider that it deprived her of her right to anonymity in the circumstances that applied here.

However, he said that it was appropriate to make a section 4(2) order on the ground that the publication of anything that would lead to Miss Beale’s identification would give rise to a substantial risk of prejudice to the administration of justice “in the effect it would have on future complainants”. By that he meant that her identification would be capable of persuading other complainants that their anonymity is not guaranteed and they therefore might choose not to report something to the police or other authorities.

News Group Newspapers Ltd appealed to the Court of Appeal against the Judge’s order.

Issue

(1) Was the Judge correct that Ms Beale was entitled to anonymity under the 1992 Act?

(2) If not, was there jurisdiction to make an order postponing her identification in reports?

Held

Allowing the appeal

(1) Section 1(1) of the 1992 Act affords lifetime anonymity to those who complain of rape and various other sexual offences. There is no provision for the court to make any order to give effect to this right. A duty to preserve anonymity is cast on others, breach of which is an offence. The provision was enacted so that complainants in sexual cases should not be discouraged by the prospect of publicity if they came forward to report an offence.

However, the right to anonymity, and the duty to preserve it, are qualified by section 1(4). The plain and obvious meaning of the language in section 1(4) is that section 1(1) does not operate to prohibit a report of any criminal proceedings other than those in which a person is accused of the sexual offence in question, or proceedings on appeal from such proceedings. Criminal proceedings in which a rape complainant is accused of perjury are “other proceedings” for that purpose. It follows that in enacting section 1, Parliament has legislated to exempt the reporting of proceedings such as those Miss Beale was facing from the ambit of the right to anonymity conferred by section 1(1),

The current guidance given by the Judicial College on Reporting Restrictions in the Criminal Courts (April 2015, revised May 2016) says at paragraph 3.2 that “the media is free to report the victim’s identify in the event of criminal proceedings other than the actual trial or appeal in relation to the sexual offence”. In this connection, it is an accurate statement of the law.

(2) The power given under section 4(2) has clear limitations: it is for the protection of the administration of justice in particular proceedings. The particular proceedings are “those proceedings”, that is, either the proceedings being heard at the relevant time, i.e. when the order is sought (see Horsham Justices, ex parte Farquharson [1982] QB 762 at 773B); or other proceedings that are “pending or imminent”. Section 4(2) does not give power to make an order restricting publication for the purposes of protecting the administration of justice generally. The judge accepted that naming Miss Beale would not create a substantial risk of prejudice to the administration of justice in the current proceedings; and no relevant proceedings were identified that were “pending or imminent”. It followed that there was no power to make the order.

The focus on the protection of the administration of justice in particular proceedings (rather than the administration of justice generally) is entirely consistent with the express limitation of the scope of section 4(2) to postponement (unlike an order made under section 11 of the 1981 Act, for example). An order made under section 4(2) cannot postpone the publication of proceedings indefinitely, as the use of the word “postponement” in the statute makes clear: see Times Newspapers Limited v R [2007] EWCA Crim 1925; [2008] 1 WLR 234. This can be achieved by providing a particular date when the order made will expire, or by incorporating in the order a reference to the point when the relevant proceedings (as defined above) have concluded.

Further, the judge failed to ask himself whether the restriction he imposed was “necessary”. He failed to explore what test should be applied in reaching a decision on that issue, or to apply that test. The law is clear: an order is only “necessary” if it satisfies the requirements of Article 10(2) of the European Convention on Human Rights, that is to say, it is “necessary in a democratic society” in pursuit of one or more of a number of specified aims. This includes the requirement that the measure be a proportionate means of achieving such aims. In order to avoid an unwarranted incursion into open justice, the step-by-step approach to making a section 4(2) order, identified in R v Sherwood and Others, ex parte Telegraph Group (CA) [2001] 1 WLR 1983, at [22] must be followed. The Judge made a general overall assessment of the desirability or otherwise of permitting, as a matter of policy, reports of proceedings in which those who have complained of rape are prosecuted for perjury. That is an important matter of public policy: see Economou v De Freitas [2016] EMLR 4 [144] – [147]; but it is a matter for Parliament, not for the court. Nor was it nor would it have been open to the judge to conclude that this order was ‘necessary in a democratic society’. To make a section 4(2) order on that basis came very close to legislating for anonymity in a situation which Parliament has expressly exempted from the general rule.

Comment

The judgment provides a valuable confirmation of a narrow but significant point: that the interpretation of s1(4) of the 1992 Act, as permitting the identification of the victim of a sexual offence in the event of criminal proceedings other than the actual trial or appeal in relation to the sexual offence, is the correct one.

It also reiterates both that the limits on the powers accorded to the Court under s4(2) of the 1981 Act are confined to specific proceedings, and the way in which any such order must be “necessary” in an Article 10 sense.

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